Supreme Court to Police about Cell Phones: 'Get a Warrant'

On June 26 the Supreme Court handed down a major unanimous decision in Riley v. California, consolidating two cases presenting the question of “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”

David Riley was pulled over for expired license plates, then arrested once police discovered he was driving on a suspended license. They searched his car, finding illegal firearms and gang-related items.

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As part of the search, police took his cell phone from his pants and searched through its information. At the police station, a detective also went through it, noticing suspicious text messages and incriminating videos, and also a photo placing Riley at the scene of a shooting a few weeks earlier.

Riley was later charged with firing a gun at a vehicle, armed assault, and attempted murder. These charges were enhanced because they were gang-related. He was convicted and sentenced to 15 years in prison.

A second case involved Brima Wurie. Searching through his phone during an arrest led police to a location where they discovered drugs, an illegal gun, and evidence that Wurie was a dealer. He was convicted, and sentenced to over 20 years in prison.

The Fourth Amendment in the Bill of Rights includes in part that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

The Supreme Court has held that generally this means a police search requires a warrant, unless “it falls within a specific exception to the warrant requirement.” One exception is that the Court has recognized since 1914 “the right on the part of Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime.” Another exception is an officer can check for immediately-accessible weapons that could threaten his safety.

Chief Justice John Roberts wrote for the Court, “These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

Roberts wrote that since there is no “precise guidance” from the Framers of the Constitution on this question, the Court balances “on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”

The Court held that since there are no safety-related concerns for a cell phone that generated the previous exceptions, and since individuals contain so much private information on cell phones, that there is no justification to declaring a new exception for cell phones to the Fourth Amendment’s requirement for a warrant.

Roberts explained that the Court understood its opinion would create hurdles:

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

Justice Samuel Alito joined most of Roberts’ opinion–making most of it unanimous. But Alito also wrote separately to disagree with one of Roberts’ points, saying that he believed officer safety and preserving evidence are not the only reasons for exceptions to the Fourth Amendment.

This case is a major development in constitutional law involving new technologies. It is also a loss for the Obama administration, which filed a brief arguing that the Fourth Amendment does not protect against government searching cell phones without a warrant, and even participating in oral argument to press that view before the justices.

As Roberts concluded for a unanimous Supreme Court:

Our cases have recognized the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself….

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.” The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple–get a warrant.

Ken Klukowski is senior legal analyst for Breitbart News and a fellow with the American Civil Rights Union. Follow him on Twitter @kenklukowski.